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Can You Apply for DACA with a Criminal Record?


Last December, a federal court struck down the Trump Administration’s attempt to end the Deferred Action for Childhood Arrivals (DACA) program and ordered its full restoration after a three-year period of denying new applications. The Biden Administration has since affirmed its stance in support of the Obama-era immigration policy, even going so far as to say it will “preserve and fortify” DACA during the next four years.

This means that if you qualify for DACA and need to file for the first time or renew your status, you can do so – although we recommend seeking an attorney to ensure your rights are protected throughout the process. While meeting the criteria for DACA can seem pretty simple, the program does bar those who were convicted of felonies and “significant” misdemeanors or three less serious misdemeanors.

If you have a criminal record, chances are you’re wondering if it’s still possible to get deferred action and protect yourself against deportation. The answer is “maybe,” and it ultimately lays in what U.S. Citizenship and Immigration Services (USCIS) says is a “significant” misdemeanor.”

What Is Considered a Significant Misdemeanor?

USCIS flat-out rejects DACA applicants who were convicted of felonies and those convicted of three or more misdemeanors. If you have one or two misdemeanor convictions, though, you’re probably curious about how much leeway is given – and especially if your conviction(s) is considered a significant misdemeanor.

The concept of a significant misdemeanor has no legal bearing in criminal law: There are felonies and misdemeanors of varying degrees of severity, but each is significant in its own way. All misdemeanors are punishable by up to a year in jail, all felonies are punishable by a year or more in prison. USCIS, though, views criminal convictions a little differently for its purposes, choosing to focus on the nature of the crime and how serious its degree was.

According to USCIS, a significant misdemeanor is one that involves activity such as the following:

  • Sexual violence, abuse, or exploitation
  • Domestic violence
  • Burglary
  • Unlawful possession or use of a firearm
  • Distributing or trafficking drugs
  • Driving under the influence of drugs or alcohol

If you were sentenced to more than 90 days in jail for a misdemeanor that isn’t described above, USCIS could still consider it to be significant. All of these, however, are just guidelines and shouldn’t be taken as hard rules. U.S. Immigration Services has said in the past that it retains the authority to determine whether or not any criminal conviction is significant enough to disqualify a DACA application.

Will Traffic Tickets affect My DACA Application?

It’s very unlikely that traffic violations will affect your DACA application. If you were ticketed for speeding, running a red light, or something else where the police wrote you a ticket and let you go, chances are you don’t have anything to worry about with these. In fact, you could even use traffic tickets to prove you were living in the U.S. during a certain period of time.

That said, you might have been arrested for reckless driving, DUI, or another misdemeanor that occurred while you were behind the wheel. As these are crimes, a conviction for any of them can affect your DACA eligibility.

Is Applying for DACA Safe When I Have One or Two Less Serious Misdemeanors?

Under any circumstance, you should consult with an attorney before you apply for DACA. Your application reveals your immigration status to immigration authorities, who may arrest and deport you if they determine you are not eligible for deferred action.

You should especially consult with an attorney if you have been convicted of any prior misdemeanors. Do not attempt to assess for yourself whether these would be considered “significant misdemeanors” by USCIS. Only a qualified legal representative has the knowledge and experience it takes to provide you with that kind of insight.

If you want to reach out to our attorney for assistance along these lines or for another matter involving immigration or criminal defense, please reach out to The Alband Law Firm today for help. We offer potential clients a free initial consultation that can help them understand our attorney’s capabilities and what we have to offer.

Get in touch with us today to request your free consultation by calling (817) 997-4366 or by connecting with us online.